in the Interest of J.A.G, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 11, 2007
• Docket: 01-06-00717-CV
• Status: Published

Opinion

Opinion issued October 11, 2007

Opinion issued October 11, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00717-CV

IN THE INTEREST OF J.A.G., Appellant

On Appeal from Cause No. JV-04-55

In the County Court at Law, Walker County, Texas

 MEMORANDUM OPINION

Following a bench trial, the trial court adjudicated J.A.G. as having engaged in delinquent conduct by committing aggravated sexual assault of a disabled individual, and committed J.A.G. to the custody of the Texas Youth Commission for a determinate period of ten years.  See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006); Tex. Fam. Code Ann. § 51.03 (Vernon Supp. 2006).  On appeal, J.A.G. asserts that (1) the evidence was legally and factually insufficient to support the adjudication of delinquency, (2) the trial court abused its discretion in excluding the results of a polygraph examination proffered in his defense, (3) the trial court violated J.A.G.’s constitutional right to due process by refusing to hear evidence of prosecutorial misconduct, (4) the trial court erred in considering an incompetent report addressing dispositional alternatives, and (5) J.A.G. received ineffective assistance of counsel at trial, all of which require reversal of his conviction.  Finding no error, we affirm.

Background

J.A.G. first met A.K.D. when he was about three years old and she was approximately four.  They became cousins when A.K.D.’s father married her stepmother, who is also the sister of J.A.G.’s father.  For much of their lives, J.A.G. and A.K.D. lived next door to each other on property owned by their grandparents.  A.K.D.’s family lived in a mobile home, and J.A.G. lived with his parents in a house that stood approximately 400 feet away.  Their parents took turns carpooling them to school, and the families spent quite a bit of time together.  A.K.D. also spent time with J.A.G. at school, sometimes eating lunch with him in the cafeteria. 

A.K.D. has mental retardation and suffers from seizures and dystonia.  Dystonia is a neurological disorder that impairs the ability to control movement.  The dystonia causes A.K.D. to have difficulty controlling the movements of her tongue, mouth, arms and legs.  Dr. Robert Zeller, a pediatric neurologist with forty years of experience, and A.K.D.’s treating physician from 1995 until 2005, stated that A.K.D. developed dystonia in approximately 2000.  As A.K.D.’s father testified, dystonia is a progressive disorder associated with A.K.D.’s mental retardation. 

Normal activities and communication are challenges for A.K.D.  Even with effort, her speech is very garbled.  Dr. Zeller explained that A.K.D. had “difficulty controlling her movements of her tongue and mouth and her arms and legs,” which impaired her ability to walk and talk.  A.K.D.’s high school special education teacher, Judith Walker, testified that she considered A.K.D. to be a “nonverbal” student, by which she meant that A.K.D. “cannot talk like, you know, like have a conversation like we’re doing right now.  It’s—she can kind of say certain things, but you have to ask a bunch of questions before you can get to, you know, whatever she’s trying to say to you.” 

Because of A.K.D.’s impairment, Dr. Zeller testified, she would not be able to protect herself from harm or be able to speak or scream if she were frightened.  Dr. Zeller also opined that A.K.D. was “mentally slow” and was physically and mentally incapable of caring for herself.  While admitting that he was not a psychologist and had not studied A.K.D.’s mental abilities in depth, Dr. Zeller testified that, based on his experience and his observation of A.K.D. over a ten-year period as her treating neurologist, he considered A.K.D. to be mentally incapable of appraising the nature of sexual activity. 

A.K.D.’s father testified that A.K.D. was first diagnosed with mental retardation shortly after age three, when she was enrolled in a special school for the learning disabled.  A.K.D. attended special education classes from first grade through her high school graduation.  A.K.D.’s father did not know the exact extent of her disability, but recalled that I.Q. testing administered when A.K.D. was in seventh grade placed her at about the I.Q. level of a third-grader.  A.K.D.’s father explained that, because of A.K.D.’s difficulty in controlling movement, it took her nearly an hour to shower and another hour and a half to dress herself.  He also noted that A.K.D. had difficulty opening the front door to the family’s mobile home.  A.K.D. also occasionally loses bowel and bladder control, and her stepmother keeps track of her menstrual cycle because A.K.D. is unable to do so. 

Late one Saturday night in October 2004, J.A.G. crept into the mobile home, entered A.K.D.’s room, awoke her, took off her pajama pants and underwear, and made penile penetration with A.K.D.’s vagina and anus.  A.K.D.’s father testified that A.K.D. tried to tell him about the encounter the next morning.  He said that she had a hard time expressing herself due to her disabilities and that he dismissed her because he understood that J.A.G. was at his sister’s house in Conroe at the time.  Later that day, however, A.K.D.’s parents noted that J.A.G.’s car was in the driveway of his home and went to speak with J.A.G. about the incident.  J.A.G. denied having been in A.K.D.’s room. 

A.K.D.’s family also celebrated her eighteenth birthday with a barbecue dinner the Sunday following the incident.  Family members, including J.A.G. and his parents, attended.  A.K.D.’s step-grandmother, who is also J.A.G.’s grandmother, testified that she saw A.K.D. seated at the kitchen table with J.A.G and did not perceive anything different about A.K.D.’s behavior that day.  A.K.D.’s father, however, recalled that A.K.D. retreated to her room for most of the party, which is something that she does when she is upset. 

When she returned to school on Monday, A.K.D.’s special education teacher, Judith Walker, asked A.K.D. about her birthday party.  In response, A.K.D. told her that during the weekend, a boy had entered her room in the middle of the night and that she didn’t get any sleep.  When Walker asked A.K.D. what the boy was doing in her room, A.K.D. began to cry.  After much questioning by Walker, A.K.D. told Walker that the boy, whom she identified as J.A.G., had touched her in her vaginal, anal, and breast areas.  According to Walker, A.K.D.’s demeanor during their discussion was normal at first, but A.K.D. became very upset when Walker began to question her about what the boy did to her. 

When Walker realized that A.K.D. was describing a sexual assault, she brought her to the school counselor and contacted A.K.D.’s parents, who brought A.K.D. to the hospital emergency room.  There, A.K.D. was seen by a physician and nurse Elizabeth Windham, who administered a rape kit.  Nurse Windham testified that A.K.D. was very upset and that she had a hard time taking a statement from A.K.D. because she was crying very hard.  She also stated that she noticed A.K.D. “[h]ad some very obvious developmental delays.”[1]

With some difficulty, Nurse Windham followed the rape kit protocol and obtained evidence and a statement from A.K.D.  According to A.K.D.’s statement, as recorded in A.K.D.’s own words by Windham, J.A.G. went into A.K.D.’s room, woke her up, took off her night shorts and panties, put his penis in her “tee tee” and in her “back part,” then in the “front part” again, and left.  Pelvic examination revealed a small tear at the vaginal opening.   

Discussion

A.      Appellate Jurisdiction

          1.       Timeliness of J.A.G.’s Appeal

As a threshold matter, we address the State’s challenge to our jurisdiction over this appeal, specifically, the assertion that J.A.G. did not timely move for new trial and, consequently, did not timely notice his appeal.  As the State notes, a motion for new trial was filed on J.A.G.’s behalf by new counsel within the thirty days following the dispositional order, but, implying that the motion was not effective when filed, the State claims that it was untimely because the trial court did not sign the order substituting new counsel until after the thirty-day deadline.  We reject the notion that actions previously undertaken by new counsel in furtherance of a client’s interest are invalid if they occur before the court signs an order of substitution.  Cf. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 852 (Tex. 2005) (holding that plaintiff had capacity to sue as estate’s personal representative as of date suit was filed even though she was not appointed personal representative until after limitations had run because appointment within reasonable time related back to timely filing of suit); Lorentz v. Dunn, 171 S.W.3d 854, 856 (Tex. 2005) (same).  The State points to the rule that trial counsel presumptively continues to represent a defendant if counsel does not move to withdraw or for substitution, but fails to note that the presumption is rebuttable. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Benson v. State, 224 S.W.3d 485, 491 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc).  If, as these cases observe, a defendant is entitled to appear pro se during the post-disposition period, nothing precludes new counsel from appearing for him.  To conclude otherwise would conflict with the Supreme Court’s directive that we construe the appellate rules “reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.”  Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997).  Accordingly, we hold that the motion for new trial was effective when timely filed and, therefore, the notice of appeal was also timely filed, supplying the jurisdictional basis to review the merits of this appeal.

2.       Perfection of appeal

The State also contends that the appeal was not perfected because neither security for costs nor an affidavit of inability to pay the costs of appeal appears in the record.  At the same time, the State notes, the docket sheet in the clerk’s record lists an affidavit of inability to pay costs.  The State appears to have neither attempted to ascertain whether this affidavit exists or, if it does, to supplement the appellate record with a copy of it.  Based on the listing in the clerk’s record and the fact that a reporter’s record has been prepared and filed, and absent any showing to the contrary, we presume that proper procedures have been followed to secure the appellate record, and proceed to address the merits of J.A.G.’s appeal. 

B.      Sufficiency of the evidence

J.A.G. does not dispute that the sexual contact that A.K.D. described occurred.  He contends that the trial court’s adjudication of delinquency by reason of aggravated assault of a disabled individual should be reversed because the evidence was legally and factually insufficient to support a finding that A.K.D. was a “disabled individual” for purposes of the statute.  Specifically, J.A.G. challenges the legal sufficiency of the evidence concerning A.K.D.’s mental capacity, her ability to consent and to resist, and her knowledge of sex.  See Rider v. State, 735 S.W.2d 291, 292–93 (Tex. App.—Dallas 1987, no pet.).  He also claims that the evidence was factually insufficient for the same reason.

1.       Applicable Standards of Review

In a juvenile proceeding, the trial court must conduct an adjudication hearing for the trier of fact to determine whether the juvenile engaged in delinquent conduct. Tex. Fam. Code Ann.  § 54.03 (Vernon Supp. 2007).  If the trier of fact determines that the juvenile engaged in delinquent conduct, the trial court must then conduct a disposition hearing. Tex. Fam. Code Ann. § 54.03(h), § 54.04 (Vernon Supp. 2006).  Here, J.A.G. waived his right to trial by jury, placing the trial court in the role of trier of fact.  

Juvenile cases are civil proceedings, but are considered “quasi-criminal” in nature.  In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); In re K.H., 169 S.W.3d 459, 461-62 (Tex. App.—Texarkana 2005, no pet.). Civil and criminal rules apply at different stages of the same proceeding.  In re K.H., 169 S.W.3d at 462; see Tex. Fam. Code Ann. § 51.17 (Vernon Supp. 2006).  The trier of fact adjudicates a juvenile as delinquent only if it finds beyond a reasonable doubt that the juvenile committed the offense charged.  Tex. Fam. Code Ann. § 54.03(f).  Thus, we review the sufficiency of the evidence to support a finding that a juvenile engaged in delinquent conduct using the same standards applicable to criminal cases.  In re K.H., 169 S.W.3d at 462; In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

When conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).  Instead, we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication.  Adelman, 828 S.W.2d at 422.  In so doing, we resolve any inconsistencies in the evidence in favor of the adjudication.  Matson, 819 S.W.2d at 843. 

          When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  We will set the verdict aside only if (1) the evidence is so weak that the adjudication is clearly wrong and manifestly unjust or (2) the findings are against the great weight and preponderance of the evidence.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that an adjudication of delinquency is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we disagree with the trial court’s findings.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the factfinder’s resolution of that conflict.  Id.  Before determining that evidence is factually insufficient to support an adjudication under the second prong of Johnson, we must conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the finding made by the trier of fact.  Id.  In conducting a factual sufficiency review, we must also discuss the evidence which, according to the appellant, most undermines that finding.  See Sims v. State, 99 S.W. 3d 600, 603 (Tex. Crim. App. 2003).

2.       Aggravated sexual assault of a disabled individual

J.A.G. was adjudicated delinquent under section 22.021 of the Texas Penal Code, which provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent,

and the victim is a disabled individual.  Tex. Pen. Code Ann. § 22.021 (Vernon 2006).  

                “‘Disabled individual’ means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself.”  Id. § 22.04(c)(3); see id. § 22.021(b)(2).  The Penal Code also creates an irrebuttable presumption that the complainant did not consent when either

·        the complainant does not give actual consent and the defendant knows the complainant is physically unable to resist, or

·        the defendant knows that as a result of mental impairment the complainant is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it.   

Id. § 22.011(b)(3), (4).  Appellate courts examine evidence of both cognitive and physical elements in determining whether it is sufficient to show a lack of effective consent due to mental impairment, focusing on the complainant’s ability to appraise the nature of the sexual act or the ability to resist it.  Rider, 735 S.W.2d at 292; Martinez v. State, 634 S.W.2d 929, 934 (Tex. App.—San Antonio 1982, pet. ref’d).

3.       Sufficiency of evidence that A.K.D. could not effectively consent

The testimony of A.K.D.’s physician, her teacher, her parents, and the emergency room nurse uniformly indicates that A.K.D.’s mental impairment is longstanding and readily apparent to anyone who interacts with her.  She has been specially educated since age three.  The adjudication of delinquency based on aggravated assault of a disabled person also finds support in the trial court’s opportunity to observe A.K.D. during her testimony, which reflects her mental disability.  For example, she testified that her age was sixteen, although other witnesses, including her parents, stated that she is nineteen.  She answered “yes” or “no” to questions when that response was inappropriate, and would sometimes give conflicting answers when asked the same question twice.  A.K.D.’s laughter at the doll she used to show the court where J.A.G. had touched her, which J.A.G. views as showing that she did not take the trial seriously, is more reasonably viewed in the context of all the evidence as showing that she did not have the mental capacity to understand the purpose of the trial and her testimony. 

The trial court, as factfinder, could also properly consider her use of childlike terms to the emergency room nurse in describing the incident as evidence of mental impairment.  See Wootton v. State, 799 S.W.2d 499, 501–02 (Tex. App.—Corpus Christi 1991, pet. ref’d) (jury finding that complainants were mentally disabled supported in part by opportunity to observe complainants on the witness stand, where they described in childlike language that appellant had sex with them). 

In asserting that A.K.D. was able to appraise the nature of the sexual act, J.A.G. points to evidence that A.K.D. wrote him notes, wanted to sit next to him in the car on the way to school, and appeared to flirt with him, as well as testimony from A.K.D.’s father that A.K.D. could express preferences for certain food and clothing and once told him that she liked a boy she met at epilepsy camp the previous summer, as well as her stepmother’s testimony that she had indicated her affection for J.A.G. and other boys and that she had crushes on some boys.[2]  This conduct, however, is no more reflective of an understanding of the nature of the sexual act than similar behavior frequently seen in preschoolers.  See also Green v. State, No. 14-06-00535-CR, 2007 WL 2265787, *3 (Tex. App.—Houston [14th Dist.] Aug. 9, 2007, no pet. h.) (mem. op.) (concluding that jury, in finding that victim was mentally disabled, could have determined that victim’s use of coarse language and opinions regarding sexuality were product of mimicking behavior rather than indication he could appraise nature of sexual act).

Furthermore, the notes written by A.K.D. to J.A.G., some of which are in evidence, weigh in favor of the trial court’s finding, not against it; they indicate that A.K.D. is unable to construct a simple sentence.  The testimony concerning A.K.D.’s discussion with her special education teacher also supports a reasonable inference that A.K.D. did not fully understand what had happened but felt anxious and upset about it.

          The evidence also supports the conclusion that J.A.G. would have known about A.K.D.’s obvious mental and physical impairments, as he had known her nearly all of his life, lived near her, and spent a significant amount of time with her.  Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court’s adjudication of delinquency for aggravated sexual assault of a disabled person based on J.A.G.’s knowledge that A.K.D. was a mentally impaired person who was “substantially unable to protect [her]self from harm or to provide food, shelter, or medical care for [her]self.”  See Tex. Pen. Code Ann. § 22.04(b)(3) (Vernon Supp. 2006).

4.       Sufficiency of evidence that A.K.D. did not actually consent

J.A.G. also challenges the legal and factual sufficiency of the evidence that A.K.D. did not actually consent to the encounter.  Because the evidence is legally and factually sufficient to support a finding that A.K.D. could not effectively consent because of her mental impairment, which was known to J.A.G., whether she actually consented is immaterial.  Even so, the record contains ample evidence to support findings that A.K.D. did not invite or consent to J.A.G.’s assault and that her physical limitations impaired her ability to resist the assault.

          J.A.G. asserts that, because there was no evidence as to what had caused the vaginal tear and no evidence of any physical sign that A.K.D. had been involved in a struggle, there was insufficient evidence that she did not actually consent to the encounter.  This assertion is not borne out by the record.  A.K.D. testified that J.A.G. hurt her vagina and anus.  Her testimony also indicates that J.A.G. initiated and was the aggressor during the incident.  In light of A.K.D.’s apparent mental and physical deficiencies, the trier of fact could reasonably construe this testimony as proof that A.K.D. did not consent to the sexual encounter. 

          J.A.G. also suggests that A.K.D.’s failure to mention any opposition or describe any effort to resist J.A.G.’s sexual advances undermines any finding that she did not actually consent to his conduct.  J.A.G. neglects to mention, however, that when the prosecution questioned A.K.D. about whether she wanted J.A.G. to have sex with her, A.K.D. answered “no.”  Furthermore, A.K.D. testified that she did not like the defendant and that J.A.G. hurt her when he came into her room. 

Moreover, what A.K.D. might not have said about the encounter is not evidence in J.A.G.’s favor.  The fact that A.K.D.’s speech is extremely limited is apparent from reviewing the record.  She was frequently reminded to answer verbally as best she could rather than rely on nonverbal signals, and the trial court and counsel engaged in discussions concerning the difficulty in hearing her well enough and understanding her testimony.  When A.K.D. did respond verbally, the brevity of those answers, the court’s many requests that A.K.D. repeat herself and the repetition of her answers by the attorneys asking her to confirm what she said show that she has tremendous difficulty speaking and is extremely difficult to understand, even though she had recently begun taking a new muscle relaxant medication that markedly improved her ability to speak and move.  In this case, the trial court, sitting as the trier of fact, had the opportunity to observe A.K.D. and hear her testimony.  After observing A.K.D. in the courtroom and hearing evidence about the effects of her dystonia, the trial court could reasonably have concluded that A.K.D. did not consent to the conduct and was not capable of effectively resisting J.A.G. 

C.      Exclusion of polygraph results

J.A.G. contends that the trial court abused its discretion in excluding testimony relating to the results of a polygraph examination administered to him.  The existence and results of a polygraph examination are inadmissible in a criminal proceeding for all purposes on proper objection. Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990).   The reporter’s record indicates that the State invoked this per se rule in its response to J.A.G.’s motion before the trial court denied the motion.  The trial court therefore did not err in excluding the polygraph results. 

D.               Prosecutorial misconduct claim

Next, J.A.G. contends that the trial court abused his constitutional right to due process by failing to consider his motions to dismiss and for sanctions based on allegations of prosecutorial misconduct during the grand jury proceedings, but failed to secure a ruling or refusal to rule from the trial court on them.  When a party does not obtain a ruling on a motion, request that the court document its refusal to rule, or otherwise object to the court’s refusal, that party may not later complain about the lack of any such ruling.  See Tex. R. App. P. 33.1(a); see Retzlaff v. Tex. Dep’t of Crim. Justice, 135 S.W.3d 731, 745 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also Martin v. Commercial Metals Co., 138 S.W.3d 619, 623 (Tex. App.—Dallas 2004, no pet.) (motion for sanction); Jones v. Smith, 157 S.W.3d 517, 523–24 (Tex. App.—Texarkana 2005, pet. denied) (motions for summary judgment and sanction).  J.A.G. waived this claim.  We therefore overrule this issue.

E.      Admission of psychologist’s report

J.A.G. further asserts that the trial court erred in admitting the psychological report and testimony by Dr. Kevin Schloneger during the disposition hearing.  Dr. Schloneger, whom the trial court had ordered to conduct a psychosexual evaluation of J.A.G., prepared a psychological evaluation rather than a psychosexual evaluation. J.A.G. complains that Dr. Schloneger was not qualified to issue the report, and that the report should not have been admitted because it was not the evaluation ordered and contained numerous grammatical errors and unverified assertions of fact. 

The Texas Family Code authorizes the juvenile court to consider reports from probation officers, court employees, and professional consultants, as well as lay witness testimony, at the disposition stage.   Tex. Fam. Code Ann. § 54.04 (Vernon Supp. 2006).  Dr. Schloneger holds a Ph.D. in clinical psychology and has a general clinical practice, including psychological testing, family therapy, adolescent treatment and treatment of young children.  In his clinical practice, Dr. Schloneger spends approximately forty percent of his time treating juveniles.  He is also a licensed sex offender treatment provider with the State of Texas.  We find no merit in J.A.G.’s assertion Dr. Schloneger lacked the credentials and experience to issue a report in keeping with section 54.04.

J.A.G.’s criticism of Dr. Schloneger’s reliance on unverified assertions of fact is likewise without merit.  As the Supreme Court has observed,

expert witnesses may testify about facts or data not personally perceived but “reviewed by, or made known” to them. If the facts or data are of a type upon which experts in the field reasonably rely in forming opinions on the subject, the facts or data need not even be admissible in evidence. Thus, in many instances, experts may rely on inadmissible hearsay, privileged communications, and other information that the ordinary witness may not.

In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (quoting Tex. R. Evid. 703).   The medical, school, and other institutional records provided by the District Attorney’s office to Dr. Schloneger for his review fall within the realm of data reasonably relied on by experts in the field.

          Although Dr. Schloneger did not study J.A.G.’s psychosexual history in depth, he did consider J.A.G.’s sexual history predating the incident and did not find that it indicated he had any specific propensity toward becoming a repeat sexual offender.  Rather, Dr. Schloneger was more concerned with J.A.G.’s propensity for aggression toward society in general.  In determining the appropriate disposition, the trial court had the opportunity to weigh the fact that Dr. Schloneger provided a psychological, rather than a psychosexual, evaluation along with the grammatical errors and alleged misstatements in the evaluation brought out by counsel on cross-examination.  We conclude that the trial court acted within its discretion in considering Dr. Schloneger’s testimony and report.

F.      Ineffective assistance of counsel claim

          J.A.G. contends that his trial counsel provided constitutionally ineffective assistance, pointing to counsel’s (1) failure to resubmit a proposed order to the court for mental examination of A.K.D., which the court probably would have signed; (2) failure to object to the hearsay testimony of A.K.D.’s teacher and the emergency room nurse; (4) questioning of A.K.D. which elicited proof of an element necessary to the State’s case; (4) failure to accept the trial court’s offer to recess the proceedings to allow for preparation of a psychosexual report in compliance with its section 54.04 order.  

We use the same analysis for ineffective assistance of counsel claims in juvenile proceedings that we do in criminal proceedings.  See In re R.D.B., 102 S.W.3d 798, 800 (Tex. App.—Fort Worth 2003, no pet.); In re E.J.L., 01-02-00472-CV, 2003 WL 1995454, *7 (Tex. App.—Houston [1st Dist.] May 1, 2003, pet. denied) (mem. op.).  To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693–94, 109 S. Ct. at 2067; see also Thompson, 9 S.W.3d at 812. A reviewing court should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must also overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

The record in this case does not show any conduct outside the wide range of reasonable professional assistance, and none of counsel’s alleged errors, if corrected, would have probably resulted in a different outcome.  The testimony appellate counsel identifies as objectionable goes only to whether A.K.D actually consented to the contact and does not undermine the legally and factually sufficient evidence supporting a finding that A.K.D. could not effectively consent to it.  The record also contains other evidence that would support the trial court’s finding even if the evidentiary errors asserted by J.A.G. had not occurred.  We also must presume that counsel had tactical reasons for deciding not to request a mental examination of A.K.D. or a psychosexual evaluation of J.A.G.  For these reasons, we overrule this issue as well.

Conclusion

          We conclude that legally and factually sufficient evidence supports the adjudication of delinquency; J.A.G. waived his prosecutorial misconduct claim; the trial court did not err in declining to consider the results of J.A.G.’s polygraph testing or in considering the psychological report and testimony from Dr. Schloneger; and the record does not reveal that J.A.G. received ineffective assistance of counsel.  Accordingly, we affirm the adjudication and disposition of the trial court.

Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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[1] The emergency physician’s record also notes that the examination of A.K.D. was limited by her mental retardation. 

[2] J.A.G. also suggests that the admission by A.K.D.’s parents that they kept pornographic material in the home weighs against the trial court’s finding, but nothing in the record supports a reasonable inference that A.K.D. had seen the materials or, if she had, that she understood what they depicted.